Opinion
242 A.D.2d 959 662 N.Y.S.2d 657 Matter of WAYNE COUNTY DEPARTMENT OF SOCIAL SERVICES, on Behalf of BRENDA D., Appellant, v. BRETT D., Respondent. 1997-07963 Supreme Court of New York, Fourth Department September 30, 1997.
Gary Lee Bennett, Lyons, for appellant.
Gary W. Rood, Fairport, for respondent.
Before PINE, J.P., and LAWTON, WISNER, CALLAHAN and DOERR, JJ.
MEMORANDUM:
Family Court erred in dismissing the petition in this paternity proceeding on the ground that petitioner had not met its burden of proving paternity by clear and convincing evidence. The only witness at the hearing was the mother, who testified that she had sexual intercourse with respondent in January 1980 and that the child was a full-term baby, born on October 16, 1980. The period of gestation indicated by that evidence placed conception within the time period in which the mother engaged in sexual intercourse with respondent (see, Matter of Niagara County Dept. of Social Servs. [Yvonne W.] v. David R., 219 A.D.2d 812, 812-813, 632 N.Y.S.2d 735). Although the mother acknowledged that she had sexual intercourse with three other men during the probable period of conception, each of those men was ruled out as the child's father by blood genetic marker tests. A blood genetic marker test indicating that there is a 99.99% probability that respondent is the child's father was received in evidence. That test, which is entitled to great weight, created a presumption of paternity that respondent failed to rebut (see, Family Ct.Act § 532[a]; Matter of Oneida County Dept. of Social Servs. [Karen L.] v. Amadeo J.D., 219 A.D.2d 834, 631 N.Y.S.2d 967). Furthermore, because respondent did not testify, the court is allowed to draw the strongest inference against him that the opposing evidence in the record permits (see, Commissioner of Social Servs. [Patricia A.] v. Philip De G., 59 N.Y.2d 137, 141, 463 N.Y.S.2d 761, 450 N.E.2d 681).
Thus, we conclude that petitioner established respondent's paternity by clear and convincing evidence (see, Matter of Niagara County Dept. of Social Servs. [Bridgette C.O.] v. Wendell R., 233 A.D.2d 949, 649 N.Y.S.2d 263; Matter of Niagara County Dept. of Social Servs. [Yvonne W.] v. David R., supra).
Order unanimously reversed on the law without costs and petition granted.